United States District Court, W.D. Virginia, Roanoke Division
LARRY D. STORES, Plaintiff,
MEGAN J. BRENNAN, POSTMASTER GENERAL, Defendant.
Glen E. Conrad Chief United States District Judge.
D. Stores, proceeding pro se, filed this action against Megan
J. Brennan, Postmaster General of the United States Postal
Service ("Postal Service"), asserting claims of
discrimination under Title VII of the Civil Rights Act of
1964 ("Title VII"), the Age Discrimination in
Employment Act of 1967 ("ADEA"), and the
Rehabilitation Act of 1973 ("Rehabilitation Act").
The case is presently before the court on the Postal
Service's motion to dismiss. For the reasons that follow,
the motion will be granted in part and denied in part.
times relevant to the instant action, Stores was employed by
the Postal Service as a Maintenance Mechanic at the Roanoke,
Virginia Processing and Distribution Center ("Roanoke
P&DC"). On or about September 23, 2014, Stores
applied for the position of Supervisor of Maintenance
Operations ("Maintenance Supervisor") at the
Roanoke P&DC. On December 1, 2014, Stores was notified
that he was not selected for the position.
initiated contact with the Postal Service Equal Employment
Opportunity ("EEO") Office on December 9, 2014. On
December 17, 2014, Stores completed an Information for
Pre-Complaint Counseling form, on which he alleged that he
had been discriminated against based upon his race, sex, age,
and unspecified disability. Stores indicated that a
nondisabled, white female under the age of 40 had been
selected for the position of Maintenance Supervisor, and that
he was of the belief that he was more qualified for the
position. Stores sent the form via priority mail on December
19, 2014, and it was received by the EEO Contact Center on
December 22, 2014.
March 9, 2015, the Postal Service completed its informal
investigation and forwarded Stores a Notice of Right to File
a Formal EEO Complaint. In the Notice, Stores was instructed
that he "would have 15 days from the date of receipt of
[the Notice] to file a timely formal complaint."
Def.'s Ex. A, Docket No. 7-1 at 78. Stores was further
advised that such complaint "could be subject to
dismissal in accordance with 29 CFR Part 1614.107 if not
filed within the 15 day time limit." Id. Stores
was told that the complaint "will be deemed timely if it
is postmarked before the expiration of the 15 day time
Stores' informal complaint cited age as one of the
discriminatory factors allegedly relied upon by the Postal
Service, Stores was also advised that "[t]he ADEA allows
persons claiming age discrimination to go directly to court
without going through an agency's administrative
complaint procedures." Id. at 79. The Notice
referred Stores to an enclosed PS Form 2563-B, which
explained that ADEA claims could be taken directly to federal
court only after filing a notice of intent to sue within 180
calendar days of the date of the alleged discriminatory
action. Stores received the Notice on March 12, 2015.
two weeks later, Stores provided written notice of his
"intent to file a civil action under [the ADEA]."
Docket No. 7-1 at 95. The notice was sent to the Equal
Employment Opportunity Commission ("EEOC") by
priority mail on March 24, 2015.
August 14, 2015, Stores drafted a letter clarifying that he
did "not intend to file a civil action at [that] time,
" but wanted to "preserve [his] right to file a
civil action" in the event that the administrative
process was not resolved to his satisfaction. Id. at
90. The letter was sent to the Postal Service EEO Office by
priority mail on August 15, 2015.
Manager of EEO Compliance and Appeals responded to
Stores' letter on August 18, 2015. The Manager advised
Stores that the Postal Service EEO Office's records
indicated that he had been provided with a Notice of Right to
File a Formal EEO Complaint in March of 2015, and that no
formal administrative complaint had been filed.
August 28, 2015, at Stores' request, the EEO Specialist
assigned to his case sent him another copy of the Notice of
Right to File a Formal EEO Complaint. The EEO Specialist
advised Stores that the correspondence would not toll the
time limits for filing a formal EEO complaint, and that if he
filed a formal complaint at that time, it may be subject to
dismissal for failing to comply with the applicable time
August 31, 2015, Stores executed a formal EEO Complaint of
Discrimination in the Postal Service. The formal complaint
was sent via priority mail on September 3, 2015.
September 21, 2015, the formal complaint was dismissed on the
basis that it was not timely filed. Stores appealed the
dismissal to the Office of Federal Operations
("OFO"). The decision was affirmed by the OFO on
February 5, 2016.
filed the instant action on March 2, 2016. Stores claims that
the Postal Service discriminated against him because of his
race, age, and status as a disabled veteran when it did ...